A warranty can be created in many different ways, which is specifically set forth by the Uniform Commercial Code. A statement as to the nature or the quality of the goods, a photo of the goods or a sample of the goods can create a warranty. A written warranty is also a simple way to create a warranty. The Code is very clear in that the creation of warranties is to be liberally construed in the favor of the consumer. There is an entire section that deals with conflicting warranties also and that is also to be liberally construed.

The New Jersey Division of Consumer Affairs, a subdivision of the Department of Law and Public Safety, provides an excellent website with links to all of the relevant New Jersey departments, links to all of the relevant inquiries pertaining to the Division of Consumer Affairs, and current headlines or investigations undergoing or undertaken by representatives of the Division of Consumer Affairs. As an example, there are headlines on the site and the current headlines as of the writing of this blog indicate that there are various ticket sellers which agree to stop speculative ticket sales, a Hudson County Senior Fraud Education and Protection Program, a notice on chimney repair scams and an announcement that the state, through Governor Corzine and Attorney General Milgram, are going to provide consumers with titles when the dealerships have gone out of business. The Division of Consumer Affairs also has links to the Division of Criminal Justice, Division of Civil Rights, Division of Gaming and Enforcement, Division of Highway Traffic Safety, Division of Law, Juvenile Justice Commission, New Jersey Racing Commission, State of Athletic Control Board, Division of State Police and Victims of Crime Compensation Office. There are also numerous consumer briefs, which are items of public information which is extensive, ranging from county office on aging to travel scams.

Courts construing R. 4:32-1(b)(3) have repeatedly stressed that the Rule only requires a predominance of common questions, not an identity of all issues. See, e.g., Fiore v. Hudson County Employees Pension Comm.,151 N.J. Super. 524, 528 (App. Div. 1977); Lusky v. Capasso Bros., 118 N.J. Super. 369, 372 (App. Div.), certif. denied, 60 N.J. 466 (1972). In Delgozzo, supra, the Appellate Division stated that a court may certify a class “even though individual questions, such as degree of damages due a particular class member, or reliance by individual class members on defendants’ alleged misrepresentations, may remain following resolution of the common questions.” 266 N.J. Super. at 181; Strawn v. Canuso, 140 N.J. 43, 67 (1995) (certifying class of landowners). Despite these instructions, defendants’ opposition offers nothing more than a hodgepodge of the typical and over-used arguments that class certification is inappropriate because generalized individual questions and affirmative defenses exist, a position routinely rejected by the New Jersey Supreme Court.

For example, in Iladis v. Wal-Mart Stores, Inc., 191 N.J. 88 (2007), the plaintiff moved to certify a class of current and former New Jersey employees of Wal-Mart for unpaid work. Before the Supreme Court, Wal-Mart argued that the trial court’s and Appellate Division’s decisions denying class certification should be affirmed because of numerous individual issues, including, but not limited to, “whether particular employees voluntarily missed rest and meal breaks; why employees who worked off-the clock did not avail themselves of the curative time-clock procedure; how much time was worked off-the-clock; whether employees worked off-the clock with the expectation of compensation; and how much in damages employees suffered, if any.” Id. at 112.

In reversing the lower courts, the Court focused on Wal-Mart’s common course of conduct towards its employees. See id. at 111-12 (describing common factual, legal and evidentiary issues). It determined that, even though there were numerous and material individual issues of fact, they did not prevent or foreclose a finding of predominance or that class certification was inappropriate. Id. at 112. In particular, the Court relied upon its earlier decision in In re Cadillac, supra. As explained by the Iliadis Court:

The definitional section of the New Jersey Consumer Fraud Act is straightforward re: The Act to persons. The New Jersey Supreme Court has explained that the Act is wide-ranging remedial legislation and should be liberally interpreted to effectuate its remedial purposes. Despite the plain language of the statute and the express statements made by the New Jersey Supreme Court, there have been various businesses and/or individuals who have argued that the New Jersey Consumer Fraud Act did not apply to them. There are some exceptions to the application of the New Jersey Consumer Fraud Act; however, these exceptions are limited. Generally, lawyers, utilities and hospitals are exempt from the New Jersey Consumer Fraud Act. The primary reason that these particular businesses are exempt from the New Jersey Consumer Fraud Act is that they have their self-contained regulatory bodies. As an example, lawyers are regulated by the Supreme Court and not by the Consumer Fraud Act.

There have been cases which have interpreted the seller’s of real estate, individual sellers, to be exempt from the wide-ranging penalties of the New Jersey Consumer Fraud Act. The New Jersey Supreme Court recently decided a case that held the definitional section of the Act is self-explanatory in that it applies to all persons. This means that if you individually sell a particular product, you will be subject to the provisions of the New Jersey Consumer Fraud Act if you are a person. A person could be an individual or a legal fiction such as a corporation. In Lyle Real v. Radir Wheels, Inc. and Richard Conklin, the individual defendant, Richard Conklin, argued that he was not subject to the penalties of the New Jersey Consumer Fraud Act and that he is exempt from liability. The Appellate Division dismissed the case but ultimately the Supreme Court held that since he is a person under the Act, he is subject to the restrictions of the New Jersey Consumer Fraud Act.

The names will be withheld until suit is filed BUT today I saw, possibly, the worst case in the many years that I have been doing this type of work.

Both of my clients are legally blind, the primary obligor and the cosigner. They do not even have a driver’s license, nor are they permitted to drive. The dealership even got the car registered and insured. The customer was at the dealership with his cane and his glasses. When they told me the story it was hard to believe. They are both legally blind.

To make matters even worse, the car is a mess. It looks like it was in a prior accident with a different hood and various parts are melted on the interior of the car. They were told the car had only one prior owner, when in fact it had two.

The following are the causes of action (theories of liability) against the dealer and/or the lender:

The Asbury Park Press has reported that a credit reporting company in Howell NJ has been sued by the State. According to the story, the name of the company is United Credit Adjusters. It is alleged that they accepted fees and failed to perform the represented services. The complaint also alleges that they were misrepresenting the effects of bankruptcy filings and representing that they could reduce credit card debt by almost 50%!

This story must be filed under the heading “if it is too good to be true it probably is.” There are very fully reviewed in this economy strict Federal regulations and Statutes governing credit repair that should be carefully reviewed.

The most important thing to remember is that no credit repair organization is permitted to charge in advance of services performed.

Section 404
(b) Payment in Advance.–No credit repair organization may charge or receive any money or other valuable consideration for the performance of any service which the credit repair organization has agreed to perform for any consumer before such service is fully performed.

The Attorney General’s office has filed suit against Cherry Hill Triplex for violation for the New Jersey Consumer Fraud Act. Cherry Hill Triplex is contesting the charges and asserts their innocence. The State has the burden to prove the case and Cherry Hill is presumed innocent until such time that the State proves their case. The lawsuit asserts that Cherry Hill Triplex violated the New Jersey Consumer Fraud Act. A copy of the complaint can be obtained from the Attorney General’s Office.

The New Jersey Consumer Fraud Act is very powerful legislation. The Consumer Fraud Act as written prohibits deceptive practices in the selling of goods and services. The Consumer Fraud Act jury instructions specifically define deceptive practices as the following:

An “unconscionable commercial practice” is an activity in the public marketplace which is basically unfair or unjust and/or which materially departs from standards of good faith, honesty in fact and fair dealing. To find a commercial practice to be unconscionable, there should be factual dishonesty and a lack of fair dealing

There is a very good case in New Jersey to illustrate a deceptive practice.